Summaries of Published Opinions, 0221 COBJ, Vol. 50, No. 2 Pg. 88

PositionVol. 50, 2 [Page 88]

50 Colo.Law. 88

Summaries of Published Opinions

Vol. 50, No. 2 [Page 88]

Colorado Lawyer

February, 2021


December 3, 2020

2020 COA167. No. 19CA1056. People v. Barnett.

Criminal Law—Attempt to Influence a Public Servant—Private Institution.

ComCor, Inc. (ComCor) is an entity that handles court-ordered supervision of individuals with GPS monitoring. Defendant presented what purported to be an official court document to a ComCor employee to obtain removal of his GPS monitor. ComCor's employee removed the device from defendant and completed paperwork logging the return of the equipment. After it was discovered that defendant had presented a false order to ComCor, he was convicted of attempt to influence a public servant under CRS § 18-8-306 and sentenced to eight years in the custody of the Department of Corrections. While this appeal was pending, defendant filed an emergency motion with the district court under Crim. P. 35(b) requesting a reduction of his sentence to probation due to risks associated with COVID-19. Upon issuance of a limited remand, the district court substantively addressed and denied defendant's motion.

On appeal, defendant contended that because ComCor is not a governmental body and its employees are not public servants, and because CRS § 18-8-306 does not apply to private institutions, his conviction should be reversed. CRS § 18-8-306 applies in this situation to employees of private community corrections organizations such as ComCor. Here, there was sufficient evidence to show that ComCor had the responsibility to supervise individuals required to wear GPS monitoring devices and provided such supervision services at the direction of the courts. Therefore, ComCor employees performed a government function and qualified to be public servants for purposes of CRS § 18-8-306. Because defendant presented what purported to be an official court document to a ComCor employee to obtain removal of his GPS monitor, the evidence supported his conviction.

Defendant also argued that the district court erred in denying his Crim. P. 35(b) motion. However, the district court had reasons for its original sentence that were not overridden by the COVID-19 pandemic, and it did not abuse its discretion in denying the motion.

The judgment of conviction and order were affirmed.

2020 COA 168. No. 19CA1189. Rueb v. Rich-Federicks.

Inmate Lawsuits—Successive Claims—In Forma Pauperis—Three Strikes.

Rueb, a prison inmate, filed a complaint in district court against numerous individuals in an official capacity and a state and city entity (collectively, defendants). Rueb requested to proceed in form a pauper is and the district court initially granted his request. Defendants filed a motion to reconsider the order, arguing that Rueb had accumulated more than three strikes under CRS§ 13-17.5-102.7(1). The district court agreed, reversed its order, and gave Rueb 30 days to pay the filing fee. He failed to do so, and the complaint was dismissed.

Rueb argued on appeal that his complaint contained claims unrelated to prison conditions, involving civil rights, declaratory judgment, and several common law torts, and therefore is not subject to the three strikes rule under CRS § 13-17.5-102.7(1). CRS § 13-17-102.7(1) bars an inmate from proceeding in forma pauperis in a subsequent civil action based on prison conditions when the inmate has three or more "strikes"—civil lawsuits that were dismissed for being frivolous, groundless, or malicious, or failed to state a claim. This provision does not exclude the possibility that a civil action may be based only in part on prison conditions. Here, Rueb's complaint contained both prison and non-prison related claims, and he previously filed at least four complaints in state court involving prison conditions, all of which were dismissed for being frivolous, groundless, or failing to state a claim. Thus, Rueb accumulated more than the three strikes required to prevent an inmate from proceeding in forma pauperis.

The order was affirmed.

December 10, 2020

2020 COA 169, 170, and 171. Nos. 19CA1810, 19CA1811, & 19CA1812. People v. Marquez. Criminal Law—Crim. P. 35(c) Motions—Postconviction Counsel.

Defendant was found guilty of second degree assault in three cases stemming from his assaults on correctional officers in prison. Between 2013 and mid-2016, defendant filed several pro se Crim. P. 35(c) motions, which the postconviction court summarily denied.

In 2016 the Public Defender's Office, which had represented defendant at trial, filed a motion on his behalf requesting that alternate defense counsel be appointed to represent him. The motion was titled a Rule 35(b) motion but alleged that defendant had received ineffective assistance from the public defender who represented him at trial. The postconviction court thus construed the motion as a Rule 35(c) motion and appointed alternate defense counsel. Postconviction counsel entered her appearance in the case in March 2017, and in March 2018 she filed a motion asserting that defendant was incompetent at that time and during his trial. The postconviction court denied the motion. In 2019 postconviction counsel filed a Rule 35(c) motion claiming defendant was incompetent at the time of his trial and raising ineffective assistance of counsel claims. The court summarily denied the motion.

On appeal, defendant contended that the postconviction court's decision to appoint postconviction counsel in 2016 obligated it to (1) require the prosecution to respond to the 2016 motion and (2) hold a hearing on that motion. Even when a postconviction court has appointed postconviction counsel to represent a defendant, it may summarily deny a defendant's Rule 35(c) motion under Rule 35(c)(3)(IV) and (V) without directing the...

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